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The Times

Wednesday, February 8 2017

Frances Gibb and Jonathan Ames bring this morning’s must-read of all things legal, including news, comment and gossip.

Today

  • Appeal judges to rule on ‘genius’ in divorce challenge
  • Second City firm shuts in Middle East in as many days
  • Housing ministers in ‘surrender to nimbyism’
  • Criminal bar dead in ten years, predicts Law Society leader
  • Legal sector shares tumbled in 2016
  • Deliveroo riders’ latest attack in gig economy legal battle
  • Comment: Lawyers must fight the Trumpian view of rule of law
  • The Churn: English judge to head Kosovo war crimes body
  • Blue Bag diary: A right little terror at the Law Society

Plus, see our plans for Brief Premium and archive of articles so far. Tweet us @TimesLaw with your views.

 
Story of the Day

Appeal judges to rule on ‘genius’ in divorce challenge

A financier who maintains that the role of his creative genius in building a couple’s $230 million fortune was not fully appreciated is challenging his divorce settlement.

Randy Work, an American multi-millionaire, has asked the Court of Appeal in London to determine the nature of genius, arguing that his “special contribution” had not been recognised and he should have a bigger share.

Mr Justice Holman originally concluded after a trial in the family division of the High Court that Work’s estranged wife Mandy Gray should get half a fortune totalling more than £140 million. He decided that Work’s contributions to wealth creation had not been ‘‘wholly exceptional’‘ -- after considering whether they possessed the ‘‘quality of genius’‘.

Three appeal judges -- Sir Terence Etherton (pictured), who is the Master of the Rolls, Lady Justice King and Mr Justice Moylan -- are now hearing the financier’s appeal.

 
 
News Round Up
Second City firm shuts in Middle East in as many days

Another of the City’s most established law firms in the Middle East has shut shop in Qatar in a sign that the market for international legal practice in the Gulf is contracting.

Herbert Smith Freehills, the Anglo-Australian firm, announced yesterday that it was pulling the plug on its outpost in Doha only four years after planting a flag in the country.

The move came a day after Clifford Chance, one of the Square Mile’s elite band of five "magic circle” law firms, revealed that it was closing its six-year-old Doha office.

However, the Herbert Smith Freehills move was more dramatic as it comes two years after shutting its office in Abu Dhabi, the capital of the UAE. In the mid-2000s, before merging with Freehills, the English firm rapidly expanded in the Gulf region from its base in Dubai.

In a statement HSF said that it was confident that it would be able to service regional clients from its two remaining offices in the region in Dubai and Saudi Arabia. “The Middle East region is a key strategic market for the firm,” said a spokeswoman, adding that it would “continue to invest” in the region.

English and US international law firms adopted a gold rush approach to the Gulf region in the mid-2000s, with as many as 50 using Dubai as a launch pad to Qatar, Abu Dhabi and Bahrain.

The financial crisis in 2008 put the brakes on the market. Within the past few years several western firms – including Simmons & Simmons, Latham & Watkins and Baker Botts – have closed regional offices.

Housing ministers in ‘surrender to nimbyism’

Ministers have surrendered to the nimbys, an expert lawyer said yesterday as the government launched much-vaunted proposals to resolve the UK’s housing crisis.

Carl Dyer, a partner and head of the planning team at the national law firm Irwin Mitchell, described government proposals to fix the country’s “broken” housing market as “a profound disappointment”.

“There was talk of this being a game-changer,” said the lawyer. “It isn't.”

Dyer criticised the minister for having “bought the argument that the problem is not the planning system but developers refusing to implement planning permissions. The same was said of supermarkets for years, and then the Competition Commission investigated the claims and found they were nonsense.”

Dyer acknowledged that there were delays implementing permissions as local councils imposed “dozens of conditions”.

“It can take months or years to meet them all,” said Dyer, claiming that “very few permissions actually lapse, so shortening the life of permissions will have almost no long-term impact”.

Critics of the white paper predicted that there would be two short-term ramifications. “Permissions will have to be implemented during this parliament rather than the next one,” said Dyer. “That is doubtless the intention – to help the government towards its already forlorn-looking target of one million homes this parliament.

“They won’t get there. We’ve been building about 35,000 homes a quarter; we needed to be building 50,000 per quarter; and the required rate is heading towards 60,000 per quarter. Nothing in this white paper is going to change that.”

Others had a more diplomatic reaction to the government’s plans. Duncan Field, a partner at the transatlantic law firm Norton Rose Fulbright, described the proposals as providing “many sticks and a few carrots”.

He said that the “most eye-catching” elements of the white paper were proposals in favour of a “presumption in favour of sustainable development” in cases where “delivery by local authorities against housing requirements falls below specific percentages over the next few years”.

Field forecast that the promise of a more streamlined process for local plans and the introduction of a standardised approach to assessing housing need “should help local authorities rise to this challenge”.

Criminal bar will die in ten years, predicts solicitor-advocate

Proposed government reforms of the legal aid payment scheme for junior advocates will put the criminal bar out of business in ten years, a senior solicitor-advocate predicted yesterday.

The Ministry of Justice announced at the beginning of the year plans to create a “modernised” graduated fee scheme, which would peg rates to the seriousness and complexity of individual cases.

Barrister organisations including the Bar Council and the Criminal Bar Association welcomed the move. But the proposal was lambasted by the solicitors’ body, the Law Society, which claimed that it would penalise solicitor-advocates and junior barristers.

Now James Parry, chairman of the society’s criminal law committee, has increased the temperature over the issue by claiming that if the government proceeds with the revised scheme the criminal bar will pack up within ten to 15 years.

Speaking to the blog Legal Hackette’s Brief, Parry described the ministry’s proposal as “grossly unfair to the junior bar and solicitor-advocates. It restores an increase to silks, but juniors will suffer.”

Parry predicted that criminal defence specialist law firms would “take the financial hit for their junior solicitors who get paid a wage, but junior barristers will take the hit themselves.”

After analysing the government’s revised scheme, Parry said that the rate offered to junior advocates was “not far off burger-flipping money”.

See Blue Bag diary below

Legal sector shares tumbled in 2016

Stock market punters would have done well to steer clear of legal profession shares last year as they generally underperformed, according to analysis published this week.

Accident claims management companies were the biggest losers, suffering after the government published in November proposals to reform whiplash compensation and increase the small claims limit.

The research from the website Legal Futures found that shares in outfits such as Fairpoint, Redde and the NAHL Group were all badly affected by the proposed personal injury reforms.

Also partially affected by those plans was the Anglo-Australian listed legal services business Slater & Gordon, with the study showing that the firm’s value continued to slide, dropping by 73 per cent last year to a share price of A$22.5.

Countrywide, the owner of a large firm of licensed conveyancers, also took a big hit last year as its share price fell by 56 per cent, arguably the result of fears for the residential property market after last summer’s vote for the UK to leave the EU.

The only significant winners in the legal profession stock market last year were Gateley, England’s only home-grown listed legal services company, and Burford, the third-party litigation funding business.

Deliveroo riders launch latest attack in gig economy legal battle

Deliveroo cycle riders in Brighton have issued an ultimatum to their bosses, ramping up the legal war of words over employment rights at “gig economy” businesses.

In a letter to the company yesterday, union official acting for the riders called for improved pay and conditions, alleging that riders working in the city were routinely paid less than the minimum wage.

Officials at the Independent Workers Union of Great Britain threatened that if the company did not reach an agreement with riders in the next fortnight it would trigger a range of local strikes and protests.

The union claims that Deliveroo bosses have hired too many riders in Brighton, meaning that many are “faced with a stark situation of spending several hours in the cold waiting for work, at times for as long as four hours”.

According to the union, the riders do not receive payment for waiting time and they are forced to finance all their own equipment and other costs. Officials are also calling on Deliveroo to boost its “drop rate” – the fee to the rider paid for each delivery – by £1 to £5 each.

At the end of last November, lawyers for the union applied to the Central Arbitration Committee, a government body, in an attempt to force Deliveroo to recognise the IWGB as the representative body for its cycle riders.

Deliveroo was launched in London in 2013 and now operates in 84 cities in 12 countries. It is estimated to have 20,000 riders on its books, who the company maintains are self-employed contractors.

The IWGB has had some success for gig economy workers, in one case winning employment rights for a bicycle courier employed by CitySprint in a landmark ruling at the beginning of this year. The union is backing other cases against a range of courier firms including Addison Lee, eCourier and Excel. Hearings are expected to start next month and continue throughout the summer.

In Brief

Magic circle firms to rake in £100m on LSE Deutsche Boerse merger – The Lawyer

County court judgments against businesses tumble by 20% -- Law Gazette

Barristers blast regulator over ‘self-serving’ training reform plan – Legal Business

Putin signs law partially decriminalising domestic violence – Daily Telegraph

Chinese judge slams Trump as a 'public enemy of the rule of law' – Sky News

 
 
 
Byline
Comment

Lawyers must fight the Trumpian view of rule of law James Libson

Donald Trump's description of James Robart as a “so-called” judge whose “ridiculous” opinion “essentially takes law-enforcement away from” the US, echoed our own lord chancellor’s abject failure to defend England’s High Court judges after the initial Article 50 ruling.

The echo from the US president sounds not just in the language and abuse of the judiciary but in relation to the nature of the rulings themselves. Theresa May’s royal prerogative and Trump’s executive orders are the same. They are the powers reserved or left to the executive that can be exercised without reference to the legislature.

Increasing use of that executive power will test constitutional accommodations around the world with governments pitched against the courts in fights that will continue for the foreseeable future and for which little preparation has been possible.

The phenomenon is not limited to the UK and the US. Turkey and Israel, for example, are engaged in existential struggles between the muscle of government and the courts’ ability or desire to limit excesses. Turkey has taken the most extreme steps. President Erdogan’s immediate reaction to the coup last summer was to remove from office up to 7,000 of the country’s most senior judges and to implement a purge of the High Council of Judges and Prosecutors.

In Israel a response to the Supreme Court’s ruling that a West Bank settlement was illegal and must be evacuated was the introduction this week of a bill that, if passed, would radically fetter the court’s powers.

In both Israel and Turkey the government-sponsored abuse of the courts and judiciary makes Trump’s pronouncements this weekend look tame.

The spontaneous appearance of lawyers at airports volunteering to represent those affected by Trump’s immigration order has been exceptionally gratifying – as was James Robart’s decision itself. The brave state attorneys-general throughout the US willing to challenge the executive order represent a bold assertion of the rule of law.

Gina Miller was equally courageous, as are the claimants in the Article 127 case going through the English courts. But short-term and individual courage may not be enough. There is a programmatic and political challenge to our constitutional certainties being made by politicians with a deep suspicion and even disdain of both the rule of law and the independence of the judiciary.

Concerted political opposition is required – as is resolve from lawyers. Most lawyers, wherever they are on the political spectrum, regard the rule of law, the separation of powers and the independence of the judiciary as sacrosanct principles.

Lawyers must hunker down for a prolonged and spirited defence of ideas central to our concept of a functional and fair democracy and for which, alongside activists, journalists and fellow citizens, we are prepared to take a stand.

James Libson is a partner at London law firm Mishcon de Reya, which acted for Gina Miller in the recent Supreme Court case involving Brexit and Article 50

 
 
Tweet of the Day

I genuinely wonder, is there some test for mental stability of the President in the US constitution? https://t.co/K4dl0Xzgdr

Bob Neill @neill_bob

 
 
Blue Bag

Brooke gets to grips with Trump’s travel ban

Sir Henry Brooke, the former Court of Appeal judge, may have retired about a decade ago but he has lost none of his appetite for legal debate and controversy.

So far Brooke, who was vice-president of the civil division of the appeal court, has pumped out four blogs analysing in some depth the current brouhaha in the US over legal challenges to Donald Trump’s executive order imposing a travel ban on nationals from seven countries.

In his latest, published yesterday, Brooke clearly sets out the arguments for the US president’s case. In recent days he explained the initial action before the federal court in Seattle, the relationship between presidential executive orders and the federal courts, and rival submission in the case to the federal appeal judges.

So cogent is Brooke’s analysis that Trump could do much worse than instructing the 80-year-old to provide a spot of legal consultancy to the administration.

A right little terror at the Law Society

James Parry has exhibited either courageous cheekiness – or thick-headed stupidity. The criminal law solicitor-advocate and partner at the Liverpool law firm Parry Welch Lacey, yesterday publicly revealed himself to be a “terrorist”.

In these days of heightened security when those making social media jokes about blowing up airports find themselves hauled before the beak, Parry might soon be receiving a visit from Merseyside constables, if not MI5 and the CIA.

He’ll have to explain that all he meant was that as a once arch critic of the Law Society he has not become part of the establishment. Speaking to the blog Legal Hackette’s Brief, Parry reminisced fondly over his successful 2013 campaign to bring down the Chancery Lane hierarchy in a vote of no confidence.

He and many other criminal law solicitors were outraged at what they perceived to be their professional body’s supine approach to the government as it attempted to slash legal aid rates.

More than three years on and the poacher appears to have turned gamekeeper (note to Parry: that might be a better analogy in the future). He has become chairman of the society’s criminal law committee.

“The strange thing about my transformation from terrorist to insider,” Parry tells the Hackette, “is that when I started the vote of no confidence I had no idea that the criminal law committee existed. I knew very little about the way the Law Society worked. I think that’s part of its problem.”

 
 
The Churn

A run down of the big partner and team moves this week

English judge to head Kosovo war crimes body

An English judge has been named as the senior judge on the body that deals with war crimes in the Hague, it was announced yesterday.

Keith Raynor – a recorder on the southeastern circuit – has become the vice-president of the Kosovo Specialist Chambers. He was also appointed to the roster of international judges at the chambers. Raynor was a barrister at 23 Essex Street Chambers in London, where he specialised in serious criminal cases. He first became a recorder on the midland circuit in 2004.

Elsewhere abroad, Fieldfisher has become the latest City of London law firm to plant a flag in Shanghai. The move comes only three months after the firm launched in Beijing. Liang Xing, a corporate partner specialising in antitrust and competition, will head the Shanghai operation. He joins from the local firm Mylink.

Also joining is another partner, Rocky Wu, who moves from another local firm, JT&N. Two existing Fieldfisher partners – Baoen Bai and Ming Zhang – have relocated to the new office from Beijing.

 
 
Closing Statement

Still waiting for word from Clarence Darrow

The great American lawyer Clarence Darrow died on March 13, 1938, of heart disease at his home overlooking the bridge that now bears his name near the Jackson Park Lagoon in Chicago, writes James Morton.

Highly sceptical of mediums, Darrow made a pact with Claude D Noble, a businessman and amateur magician, and the celebrated magician Howard Thurston that the last surviving member of the trio would try to contact the other two by visiting their gravesites on the anniversary of their deaths. The deal was that the survivor would attempt to contact them while holding something that was familiar to all three; the deceased would attempt to knock the object out of the survivor’s hand.

Thurston predeceased Darrow. So until 1951, on March 13, Noble would kneel on the bridge while holding various objects including the transcript of Darrow’s cross-examination in the Scopes monkey trial and say: “Clarence Darrow, I am here in the fulfillment of our pact. If you can manifest yourself do it now.” He never did.

Every year on the date of Darrow’s death a wreath-laying ceremony is now held on the bridge. So far there has still been no word.

James Morton is a former criminal law solicitor and now author